Indian Lake to seize waterfront easements

Indian Lake Borough Council will file a series of long-awaited declarations of taking against property owners who have not voluntarily signed flowage easements.

The borough's acquisition of easements is the final roadblock to completing a $7.5 million dam remediation project that began in 2007.

The borough has gathered about 455 flowage easements from willing property owners, but 80 property owners have not signed the easements that allow for 18 inches of water to encroach onto their waterfront properties in the event of a worst-case flood scenario.

To forego the voluntary signing of those 80 easements, borough council passed a resolution Wednesday directing solicitor Dan Rullo to file for eminent domain — granting the municipality the power to seize the remaining easements.

"This has been nearly a year in the making," Councilman Robert Hanson said. "We have tried our hardest to get the easements voluntarily, and I don't think anyone can blame us now for taking strong-armed tactics to finish the job."

The strategy is a cost-effective solution to a state mandate that requires the dam to be brought up to code. The Department of Environmental Protection requires the dam to be capable of withstanding a possible maximum flood level of 38 inches of rainfall during a 72-hour period.

To meet that requirement, borough council has decided to raise the height of the dam. This strategy will cost about $600,000 — $2 million less than several other more costly alternatives for Phase III.

If 38 inches of rain fell in 72 hours, water levels would rise to the point where 18 inches of water would back up onto lakefront properties — but the dam would not be topped. The DEP requires the borough to obtain the flowage easements for this reason.

A flowage easement is defined as an acquired right of use of another person's land for water temporarily or permanently impounded by a dam.

"DEP said that we must have all the easements in hand before they will permit the final phase of the project," Councilman Paul Cornez said.

Once declarations of taking are filed, property owners will have 30 days to challenge the move. Hanson predicts that the borough will win those challenges based on the argument that the taking benefits the borough as a whole.

"This is a good thing for residents," he said. "We are saving tax dollars with this strategy while meeting state regulations."

Even after the borough seizes the easements, for up to five years those 80 property owners will be able to argue in court that they deserve monetary compensation based on the diminution of property value — if any — caused by the taking.

Hanson said that council is confident that property values will not diminish in any way as a result of the easements.

"We do not believe, in our heart of hearts, that there is any diminution of value," he said. "We wouldn't have gone this route if we thought we'd lose that fight.

"If any property owner is awarded any money based on that challenge, then we failed our residents as a whole."

If challenges do arise, the borough will have to pay for appraisals to be performed for each contested property. Those appraisals would determine the property's market value pre- and post-taking.

"If we end up in court on the issue, it's just going to end with money being wasted on appraisals," Hanson added.

Once the easements are in hand, the borough will await the go-ahead from DEP to begin Phase III construction in hopes of breaking ground in the fall.